{"id":5312,"date":"2023-09-13T08:02:30","date_gmt":"2023-09-13T12:02:30","guid":{"rendered":"https:\/\/www.luxuryhomemagazine.com\/thepalmbeaches\/blog\/?p=5312"},"modified":"2023-09-14T09:26:56","modified_gmt":"2023-09-14T13:26:56","slug":"can-these-walls-talk","status":"publish","type":"post","link":"https:\/\/www.luxuryhomemagazine.com\/thepalmbeaches\/blog\/2023\/09\/13\/can-these-walls-talk\/","title":{"rendered":"Can These Walls Talk?"},"content":{"rendered":"

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by Joanne M. O\u2019Connor<\/p>\n

Do Americans have a First Amendment right to express themselves through the custom design of their home, thereby avoiding local regulations that seek to promote community aesthetics? That\u2019s the question a divided panel of the Eleventh Circuit recently addressed\u2014the first federal appellate court to do so\u2014in Donald Burns v. Town of Palm Beach (2021).<\/p>\n

\nBurns\u2019s Custom Beachfront Mansion<\/strong><\/p>\n

Donald Burns, a resident of Palm Beach and former telecom executive, sought to demolish his 13,000-square-foot Bermuda-style mansion and replace it with a midcentury modern home nearly twice the size. His new two-story oceanfront mansion would have a basement garage, wine storage area and steam room, and would be screened from view by a limestone wall, louvered gate and heavy landscaping.<\/p>\n

\nPalm Beach\u2019s seven-member architectural review commission, experienced in art, architecture and real estate, denied Burns a permit, finding that the proposed residence did not satisfy the town\u2019s \u201clook-alike\u201d ordinance because it was excessively dissimilar from other homes within 200 feet with respect to specified architectural and design criteria.<\/p>\n

\nBurns Sues the Town of Palm Beach<\/strong><\/p>\n

For decades, courts have concluded that the First Amendment protects far more than just the spoken and written word. Based on this principle, Burns sued the Town of Palm Beach in federal court, claiming the town had denied his First Amendment rights to express himself through his residential aesthetic. He complained that the commission had rejected his proposed design based solely on that aesthetic\u2014in other words, simply because they didn\u2019t like midcentury modern-style homes.<\/p>\n

During the litigation, Burns asserted that he sought through his design to communicate his \u201cevolved philosophy of simplicity in lifestyle\u201d and the message that he was \u201cunique and different\u201d from his neighbors. He wanted his new mansion \u201cto be a means of communication and expression of the person inside: me.\u201d<\/p>\n

The trial court ruled for Palm Beach, albeit finding that the proposed residence did not fall neatly into existing First Amendment case law.<\/p>\n

On Appeal, A Split Eleventh Circuit Rules<\/strong><\/p>\n

A sharply divided three-judge panel of the Eleventh Circuit ruled 2-1 against Burns in an opinion that ran more than 130 pages. Writing for the majority, Judge Robert Luck agreed that Burns\u2019s proposed mansion was not expressive conduct but \u201cjust a really big beachfront house that can\u2019t be seen, located on a quiet residential street in Palm Beach, Florida.\u201d<\/p>\n

The majority held that the plans called for \u201ccarefully shielding\u201d most of the home from view\u2014and even if the structure could be seen, there was no evidence a reasonable viewer would understand it to be anything other than \u201ca really big house.\u201d<\/p>\n

The majority expressly declined to decide the admittedly \u201charder issue\u201d of whether residential architecture can ever be expressive conduct protected by the First Amendment and, if so, what is the proper First Amendment test to apply.<\/p>\n

In his dissent, Judge Stanley Marcus pointedly criticized his colleagues for curtailing the freedom of expression. Beginning with the premise that architecture is art, he found it difficult to square the majority opinion with well-settled law extending First Amendment protection to artistic expression in all its forms.<\/p>\n

Residential architecture is inherently functional and semipermanent. It might be art, but it isn\u2019t pure speech entitled to heightened protection, as even the dissent recognized. Ultimately, Burns\u2019s proposed mansion\u201420,000-plus square feet shielded by privacy walls, landscaping and the ocean\u2014was far from a perfect vehicle for deciding whether residential architecture can ever be expressive conduct protected by the First Amendment.<\/p>\n

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Joanne M. O\u2019Connor<\/strong><\/p>\n

A team of women at Jones Foster defended the Town of Palm Beach in Donald Burns v. Town of Palm Beach, a landmark lawsuit brought under the First Amendment of the United States Constitution claiming the right to freedom of expression in residential architecture. That defense team included Litigation Shareholder Joanne M. O\u2019Connor, Litigation Associate Hanna B. Rubin, Paralegal Karen Bould and Litigation Shareholder Margaret L. Cooper (in memoriam). Ms. Cooper argued dispositive motions before the District Court and Ms. O\u2019Connor handled the oral argument before the Eleventh Circuit.<\/p>\n

Jones Foster Shareholder Joanne M. O\u2019Connor is a Florida Bar Board Certified specialist in Business Litigation, representing clients in a wide range of complex commercial, real estate, and governmental litigation matters. Ms. O\u2019Connor is experienced in defending actions seeking certification of nationwide and statewide classes and handles jury and non-jury trials and appeals in state and federal courts and before private arbitration panels. Additionally, she serves as an attorney\u2019s fees and professional liability expert witness.<\/p>\n

This article originally appeared in the Best Lawyers\u00ae \u201cWomen in the Law\u201d Business Edition Spring 2023.<\/p>\n

505 S. Flagler Dr., Suite 1100
\nWest Palm Beach, FL 33401
\n(561) 659-3000
\njonesfoster.com<\/a>\n<\/p>\n

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Visit Luxury Home Magazine of The Palm Beaches<\/a>.<\/p>\n

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